U.S. Supremes Tighten the Screws on Exactions

The U.S. Supreme Court has tightened the screws on exactions, ruling in a case from Florida that government agencies must follow the Nollan/Dolan doctrine – even when a permit is denied and when the exaction involves money as well as property.

At a glance, the ruling would appear to strike down the California Supreme Court’s 17-year-old ruling in Ehrlich v. Culver City, 12 Cal.4th 854, which gave cities and counties more leeway on exactions when they are imposed as part of a general plan policy rather than a one-off permit. 

Writing for the five-justice majority, Justice Samuel Alito resolved the most basic question in the case by saying that an actual taking did not have to occur in order for the property owner to have his constitutional rights violated. Writing for the four-judge minority, Justice Elena Kagan predicted that the ruling’s effects would be widespread and confusing because ordinary fee setting will now be subject to federal constitutional tests.

In a statement published on its website, the American Planning Association noted its disappointed with the ruling, calling it "an unnecessary blow to state and local governments attempting to reduce development impacts on the environment as well as engage in good-faith discussions with landowners to determine appropriate mitigation efforts."